There may well be considerable differences between the Biden and Trump cases, but the headline is the same: Biden and Trump both mishandled classified information. That is the way the public will perceive the two cases, regardless of what the special prosecutors and investigators may find. If Garland treats the two cases significantly differently—if he allows the prosecution of Trump without allowing prosecution of Biden—many in the public will perceive a double standard. This is especially problematic since our nation is so bitterly divided and it is likely that the 2024 election will pit Trump against Biden. Any prosecutorial decision regarding these two candidates will surely become a divisive political issue in the 2024 campaigns.
Even before the recent Biden disclosures, I argued that for the Justice Department to prosecute Trump for what was found at Mar-a-Lago, two standards would have to be met. The first is the Richard Nixon standard: Nixon left office not because of pressure from Democrats, but rather because of threats from Republican leaders that he would be impeached and prosecuted if he did not resign. This bipartisan support gave credibility to the threat of his removal.
The second standard is what I call the Hillary Clinton and Sandy Berger comparisons. To prosecute Trump for his mishandling of classified material, the evidence would have to show considerable differences between what Trump is accused of doing and what the two democrats were accused of doing. Now that standard has been expanded to include the Clinton-Berger-Biden episodes. The evidence must show dispositive differences between the three Democrats who were not prosecuted and Trump.
On the basis of currently available evidence, neither of these standards has been met. Perhaps new evidence will be disclosed that warrant prosecution of Trump without any suspicion of partisan double standard. The attorney general understands that his job is to make sure not only that justice is done, but that it is seen to be done. The recent Biden disclosures would likely make that impossible, especially in the current partisan environment.
Then there is the issue of timing. Why did the Biden administration delay disclosure of the Biden issue until now. According to media reports, the disclosure came only after it was clear that it would be reported in the press. If true, that raises the question of whether it would have been reported at all, had the media not gotten wind of it. It also raises the question of who disclosed this information to the media.
Many Republicans claim that failure to disclose Biden’s mishandling of classified material before the midterm elections may have been intended to prevent its having an impact on the election. We know that timing can be everything when it comes to voting. The decision by former FBI Director James Comey to disclose the reopening of the investigation against Hillary Clinton on the eve of the 2016 election, may well have impacted her narrow loss. We will never know.
It may be understandable that disclosure was not made in the week between its discovery and the election, but it is hard to explain the additional two-month delay. Although the Biden episode may be entirely innocent, as I believe it probably was, the public had the right to make that judgment in real time. They also have the right to know that Biden quickly turned over the material to the archives and that his lawyers have apparently cooperated fully with investigations. This contrasts sharply with what Trump and his legal team did and did not do.
The law and practice regarding presidential and vice-presidential material is anything but clear. This is especially true when it comes to the possibility of criminal prosecution. It is highly unlikely now that anyone—Republican or Democrat—will be prosecuted for the mishandling of classified information after they leave office. The law should be clarified, and the criminal law should be made applicable only to willful mishandling of highly sensitive material that endangers national security.
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The views expressed in this article are the writer’s own.
